Other Transactions (OT) Guide
|Agreement||The mutually agreed terms and conditions of the parties to an OT. Absent exceptional circumstances, it will take the form of a legally binding written instrument.|
|Agreements Officer (AO)||A warranted individual with authority to enter into, administer, or terminate OTs. To be appointed as an AO, the individual must possess a level of responsibility, business acumen, and judgment that enables them to operate in the relatively unstructured environment of OTs. AOs need not be Contracting Officers, unless required by the Component’s appointment process.|
|Awardee||Any responsible entity that is a signatory to an OT agreement. A sub-awardee is any responsible entity performing effort under the OT agreement, other than the awardee.|
|Broad Agency Announcement (BAA)||A BAA is a general solicitation as defined at 10 U.S.C. 2303. BAAs should only be used to solicit for research and development (R&D) if the Government reserves the right to award a contract or another type of agreement, such as a grant, cooperative agreement, or other transaction. This must be clearly articulated in the solicitation.|
|Commercial Solutions Opening (CSO)||
The CSO might mean two things to a DoD acquisition professional. This guide describes the CSO pioneered by Defense Innovation Unit (DIU) and Army Contracting Command New Jersey (ACC-NJ) which leverages OT authority (see the CSO memo concerning class deviation under the FAR, which is distinct from OT authorities covered in this guide). At its core, the CSO is a competitive solicitation process with three-phases focused on being ‘fast, flexible, & collaborative’ for innovative prototype projects. Phase 1 is an evaluation of company solution briefs, typically five (5) page white papers or fifteen (15) slides. Companies are downselected based on solution briefs: relevancy, technical merit, business viability, and innovativeness. Companies invited to Phase 2 will pitch to the government additional details on project rough order magnitude (ROM), cost and schedule, as well as discuss data rights. Companies invited to Phase 3 will submit proposals to be reviewed and negotiated by the government. For additional information on the DIU CSO please visit their website (www.diux.mil).
Be advised, CSOs are very flexible solicitation instruments and AOs are not required to follow the DIU method described above (see Appendix E for additional information concerning CSOs).
|Computer software||Computer programs, source code, source code listings, object code listings, design details, algorithms, processes, flow charts, formulae and related material that would enable the software to be reproduced, recreated, or recompiled. Computer software does not include computer data bases or computer software documentation.|
|Computer software documentation||Owner’s manuals, user’s manuals, installation instructions, operating instructions, and other similar items, regardless of storage medium, that explain the capabilities of the computer software or provide instructions for using the software.|
|Directly Relevant||Under the authority of 10 USC §2371b, prototype projects must be directly relevant to enhancing the mission effectiveness of military personnel and the supporting platforms, systems, components, or materials proposed to be acquired or developed by the DoD, or to improvement of platforms, systems, components, or materials in use by the armed forces. In this context, the phrase “directly relevant” focuses on the agency determination of the direct relationship of the prototype project (as opposed to a tangential association) with the DoD mission.|
|Design Sprints||A methodology, listed under ‘Soliciting for Solutions’ section of the guide, for solving problems through designing, prototyping, and testing ideas with users. Design Sprints quickly align teams under a shared vision with clearly defined goals and deliverables. DoD organizations that excel at this community of practice include Air Force CyberWorx. There are several commercial companies that specialize in this practice with unique methodologies around solving difficult problems.|
|Expenditure-Based OT||Agreements where payments are exclusively or primarily based on amounts generated from the awardee’s financial or cost records.|
|Fixed-price OT||Agreements where the primary method of payment is not based on amounts generated from the awardee’s financial or cost records, including agreements where the price is fixed against established milestones and/or estimated level-of-effort.|
|Hackathon||A competitive event, listed under ‘Soliciting for Solutions’ section of the guide, in which people work in groups on projects (generally software), with the goal of creating functioning products by the end of the event. A few interesting examples of where this has been applied in the DoD include: ‘Hack the Pentagon’ Bug Bounty program. Organizations like MD5 specialize in helping DoD customers execute these types of programs.|
|Innovation Workshops||A multi-day engagement, listed under ‘Soliciting for Solutions’ section of the guide, focused on defining problems in a business, process, or technology with specific attention to the overall user experience (UX).|
|Non-traditional Defense contractor (NDC)||An entity that is not currently performing and has not performed, for at least the one-year period preceding the solicitation of sources by DoD for the procurement or transaction, any contract or subcontract for the DoD that is subject to full coverage under the cost accounting standards prescribed pursuant to section 1502 of title 41 and the regulations implementing such section (see 10 U.S.C. 2302(9)).|
|Prize Contests||A contest, listed under ‘Soliciting for Solutions’ section of the guide, implemented under 10 U.S.C. § 2374a that can result in advanced technology achievements for basic, applied, advanced research as well as prototype development that have the potential for application to the performance of military missions of the DoD.|
|Procurement Contract||A contract awarded pursuant to the Federal Acquisition Regulation.|
The definition of a “prototype project” in the context of an OT is as follows: a prototype project addresses a proof of concept, model, reverse engineering to address obsolescence, pilot, novel application of commercial technologies for defense purposes, agile development activity, creation, design, development, demonstration of technical or operational utility, or combinations of the foregoing. A process, including a business process, may be the subject of a prototype project.
Although assistance terms are generally not appropriate in OT agreements, ancillary work efforts that are necessary for completion of the prototype project, such as test site training or limited logistics support, may be included in prototype projects. A prototype may be physical, virtual, or conceptual in nature. A prototype project may be fully funded by DoD, jointly funded by multiple federal agencies, cost-shared, funded in whole or part by third parties, or involve a mutual commitment of resources other than an exchange of funds.
|Rodeos||A forum for enthusiasts, listed under ‘Soliciting for Solutions’ section of the guide, where they demonstrate capability in an industry. Participants may receive prizes if they meet standard criteria.|
|Senior Procurement Executive (SPE) for the agency||The Under Secretary for Defense for Acquisition and Sustainment (USD(A&S)) has designated the Directors of the Defense Agencies, the Directors of Field Activities with contracting authority, the Commanding Officers of Combatant Commands (CCMDs) with contracting authority and the Director of the Defense Innovation Unit as having the authority to carry out Prototype OTs and follow-on Production OTs as permitted by section 2371 b. This designation does not apply to the military departments, the Defense Advanced Research Projects Agency (DARPA), and the Missile Defense Agency (MDA), which have their own authorities prescribed in statute. (see recent policy)|
|Shark Tank-like presentations||An arrangement, listed under ‘Soliciting for Solutions’ section of the guide, where ‘investors’ meet with entrepreneurs who pitch their solution/product with terms of an agreement decided following the pitch.|
In evaluating the significance of expected NDC/nonprofit research institution participation, pursuant to 10 U.S.C. §2371b(d)(1)(A), the Agreements Officer (AO) is expected to consider input from relevant technical advisors (Legal, Engineering, Program Management, Pricing, Logistics, etc.) in assessing the totality of the circumstances for each proposed prototype project before making an independent judgement as to the significance of expected NDC or nonprofit research institution participation.
The AO should consider, by way of illustration and not limitation, whether the NDC/nonprofit research institution will supply a new key technology, product or process; supply a novel application or approach to an existing technology, product or process; provide a material increase in the performance, efficiency, quality or versatility of a key technology, product or process; accomplish a significant amount of the prototype project; cause a material reduction in the cost or schedule of the prototype project; or, provide for a material increase in performance of the prototype project.
AOs should not establish blanket rules or thresholds for determination of significance, and agencies must not establish local policies which infringe on the AO’s judgment in making such determinations. Blanket policies which provide that expected NDC/nonprofit research institution participation must represent a predetermined percentage of total project value, or total labor dollars, etc., to be considered “significant,” are arbitrary and infringe upon the Agreement Officers responsibility to make a reasoned, prudent and independent determination for each individual prototype project.
|Successfully completed||A transaction for a prototype project is complete upon the written determination of the appropriate approving official for the matter in question that efforts conducted under a Prototype OT: (1) met the key technical goals of a project; (2) satisfied success metrics incorporated into the Prototype OT; or (3) accomplished a particularly favorable or unexpected result that justifies the transition to production. Furthermore, successful completion can occur prior to the conclusion of a prototype project to allow the Government to transition any aspect of the prototype project determined to provide utility into production while other aspects of the prototype project have yet to be completed. Any Prototype OT shall contain a provision that sets forth the conditions under which that prototype agreement must be successfully completed.|
|Task Demonstrations||A forum, listed under ‘Soliciting for Solutions’ section of the guide, where a prototype, rough example, or an otherwise incomplete version of a conceivable product or future system, is demonstrated as a proof of concept with the primary purpose of showcasing the possible applications, feasibility, performance and method of an idea for a new technology.|
|Technical data||Technical data means recorded information, regardless of the form or method of the recording, of a scientific or technical nature (including computer software documentation). The term does not include computer software or data incidental to contract administration, such as financial and/or management information.|
|Transaction||The entire process of interactions related to, entering into an agreement, executing and transitioning a prototype project.|